United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person


 


JUDGE PETER CLARK

1. We refer to the Judgment which I gave on behalf of a differently constituted division at a preliminary hearing held in this case on 26 June 2000 for the relevant background.
2. I should say at once that the Order drawn up in this case does not reflect that which appears from the Judgment, in particular the "reasons appeal" which was before us on the last occasion was dismissed (Judgment paragraph 10), not allowed. The substantive appeal was permitted to proceed on the basis of summary reasons only under rule 39(3). It is that substantive appeal which comes before us today for preliminary hearing, the Chairman's Notes of Evidence now having been obtained.
3. The issue in the substantive appeal identified on the last occasion may be shortly stated. Was there any evidence to support the Tribunal's findings of fact at paragraph 6(d) of their reasons that the Appellant was offered alternative employment by the Respondent at their site at Workington, Cumbria, but he declined it? That finding is made on the basis of what the Tribunal identified as the following evidential dispute.

"He (the Applicant) says this"

(his not wanting to go to Workington):

"was because he was told that he had to stay and look after things in Cheadle but the respondent says that the applicant had decided that he did not want to go to Workington either on a short term or long term basis."

Was there evidence from the respondent to support that case?

4. We have considered the Chairman's Notes . In evidence the Appellant denied that he had told a Mr Pye that he would not go to Workington. Mr Arlott, called by the Respondent, stated that this was what he had been told by Mr Pye.
5. More particularly Mr Rutkowski, who became the Cheadle site manager in April 1998 and was himself subsequently made redundant after 22 years service, said that in June 1998 the Appellant agreed to go to Workington for two weeks to help and train the packing staff there. He came back after one week. Mr Rutkowski spoke to the Appellant on his return. His evidence was that the Appellant told him that he had enjoyed his time with former colleagues in the hotel but said he could not see himself there permanently. Thereafter he never indicated that he wanted to relocate to Workington.
6. That evidence is disputed by the Appellant before us, but he agrees that is the evidence which Mr Rutkowski gave.
7. It follows, in our judgment, that there was evidence before the Tribunal on which they were able to find that the Appellant was offered alternative employment in Workington, but declined it. That is a finding of fact with which we cannot interfere.
8. Today Mr Pratt takes two further points:

(1) There was no offer of alternative employment made to him in writing by the Respondent contrary to the terms of his conditions of service, and what he describes as "the Employment Act". In our judgment a written offer is no longer required even where the employer seeks to rely on an offer of suitable alternative employment unreasonably refused by the employee to defeat a claim for redundancy payment (see Section 141(1) of the Employment Rights Act 1996 ; compare Section 2(4) of the original Redundancy Payments Act 1965).

Equally, there is no requirement for the purposes of Section 98(4) of the Employment Rights Act 1996 that any offer of alternative employment be put in writing. We therefore reject that submission.

2) Mr Rutkowski's evidence, recorded in the Chairman's Notes, that someone was ultimately recruited for the packing job, equivalent to that done by the Appellant at Cheadle, was untrue. We have two observations on that submission. First it is not the function of the Appeal Tribunal to decide where the truth lies; factual questions are for the Employment Tribunal, our jurisdiction being limited to correcting errors of law. Secondly, and in any event, the Appellant states that no one had been employed in that post at Workington before he left the company (that is on 31 October 1998). That is not, it seems to us, inconsistent with Mr Rutkowski's evidence. He said that he did not know when the post was filled. It follows that it may have been after the Appellant left.

9. In these circumstances, having considered the points made by Mr Platt in support of this appeal, we are driven to the conclusion that it discloses no arguable point of law fit to go forward to a full appeal hearing. In these circumstances, this appeal must be dismissed.